The gist of what was said – a shift in the use of direct speech evidence in NSW

The NSW Court of Appeal adopts the Federal Court approach to the correct affidavit form of conversation evidence.

The background

In New South Wales it has been standard practice for affidavit evidence of conversations to be drafted in the form of direct speech. To do otherwise risked the conversation evidence being ruled inadmissible. To overcome the fact that witnesses rarely remember the precise words of conversations, usually the direct speech evidence would be prefaced by the phrase that the conversation recalled by the witness is 'in words to the following effect' to signify that the witness recalls only the effect or the gist of what was said, as distinct from the specific words.

In May 2023, in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, Justice Jackman criticised the NSW practice of drafting in direct speech form, gist or substance conversation evidence, describing it as 'logically, ethically and grammatically wrong'. Recently, the Court of Appeal in Gan v Xie [2023] NSWCA 163 expressly approved Justice Jackman’s criticisms and the general principles he laid out for the form conversation evidence should take.

Kane’s Hire

In Kane’s Hire, Justice Jackman was asked to consider the conversation evidence of Mr Kane which was expressed in direct speech form. In response to questions from Justice Jackman, Mr Kane responded that his evidence was not 'word for word' and 'it was more like the idea, what the conversation was about'.

It was clear that Mr Kane did not recall the precise words of the conversation and Justice Jackman found that the use of the direct speech form made it ‘impossible to ascertain…which words (if any) have been recalled by him as the exact words used in conversations some years ago, and which elements are the product of reconstruction’. Justice Jackman found that using direct speech form in this way makes ‘the evidence appear more precise and weighty than it really was, while allowing the witness some flexibility from verbatim accuracy if challenged on particular words in cross-examination’. Regardless of whether the conversation evidence is qualified by the phrase: ‘in words to the following effect’, his Honour found that the use of direct speech in affidavit evidence is ‘wrong’ in the following three significant ways:

• logically, as it reverses the logical process of deriving the meaning or substance of what was said from the actual words used;
• ethically, because the evidence given conceals the true nature and quality of the witness’ memory and conveys a false impression of it;
• grammatically, as the use of quotation marks indicates that the quoted passage is of the exact words spoken, when it is not.

Citing several cases, Justice Jackman noted that there is ample authority for the proposition that there is no rule of the law of evidence in Australia that evidence of conversations must be given in direct speech. His Honour also noted that the primary duty of a witness is one of honesty and that witnesses should not be compelled or encouraged to be untruthful on oath by giving evidence of a form of words in direct speech with which they are not happy and which they cannot actually recollect in preference to their own words in indirect speech. His Honour stated that the form in which evidence of conversations is given should reflect the difference between verbatim memory and gist memory and set out the following general principles applicable to the form of conversation evidence:

1. conversation evidence should correspond to the nature of the actual memory the witness has of the conversation. If the witness remembers only the gist or substance of a conversation, and not the specific words, then the evidence should be given in indirect speech;
2. if the witness remembers particular words or phrases, then those words or phrases should be put in quotation marks to indicate that they are verbatim quotations;
3. if the witness recalls the actual words used in a conversation, then the evidence should be given in direct speech, quoting the words actually spoken;
4. evidence given in direct speech should not be prefaced by the phrase that the conversation occurred 'in words to the following effect' as this expression blurs the distinction between verbatim memory and gist memory.

Gan v Xie

In the Gan case, the Court of Appeal found that the primary judge had erred in rejecting witnesses’ conversation evidence on the ground that they had no specific recollection of particular words used such that the evidence was unreliable and had no probative value. White JA, with whom Simpson AJA and Basten AJA agreed, held that the fact precise words are not recalled does not mean that the witness’ memory of the substance or gist of what was said must be rejected and went on to say that he agreed with Justice Jackman’s observations in Kane’s case as noted above. It follows that the practice of drafting gist or substance conversation in a direct speech form must change.

Implications for you

Affidavit evidence of conversations should be carefully drafted to reflect the nature of the witness’s actual recollection: that is, as between the precise words used or only the gist or substance of what was said. The former should be drafted in a direct speech form and the latter in an indirect speech form. If a direct speech form is adopted for gist or substance evidence, a witness may be found after cross examination to have exaggerated the nature and quality of their memory and face adverse credibility findings detrimental to the case.

Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381

Gan v Xie [2023] NSWCA 163